May a furloughed Nebraska government lawyer defend the government in employee appeals challenging the same furlough?

Plain-English summary

A civilian Army lawyer ordinarily defended the Army in employee appeals before the Merit Systems Protection Board. An eleven-day furlough applied both to the employees bringing appeals and to the lawyer, giving the lawyer a personal financial stake in furlough-related outcomes.

The Committee concludes that the likely loss of thousands of dollars creates at least a significant risk that the lawyer's representation of the Army will be materially limited by personal financial interests. A concurrent conflict therefore exists under Rule 1.7(a)(2).

The conflict is not automatically nonconsentable. The representation was not identified as prohibited by law, it did not involve claims between two clients represented by the lawyer in the same proceeding, and the Secretary of Defense had given written informed consent on the Army's behalf.

The remaining condition is the lawyer's objectively reasonable belief that competent and diligent representation remains possible despite the conflict. That assessment depends on the lawyer's own financial circumstances and the effect on the lawyer or family; the Committee lacked enough facts to decide it for the requesting lawyer.

The assessment continues throughout the matter. If changing circumstances make the belief unreasonable, the lawyer must inform the client and cease the representation. The Army also may revoke or limit its consent at any time.

In practice

Under this opinion, written government consent does not complete the analysis. The affected lawyer must independently and objectively assess whether the personal financial impact permits competent and diligent representation, both at the outset and as circumstances change.

Common questions

Q: Why does the furlough create a conflict?

A: The lawyer may lose thousands of dollars under the same policy being challenged in proceedings the lawyer would defend.

Q: Is the conflict waivable?

A: Yes, if every Rule 1.7(b) condition is satisfied.

Q: Is the Secretary of Defense's written consent enough by itself?

A: No. The lawyer also must reasonably believe competent and diligent representation remains possible.

Q: Is that belief judged only subjectively?

A: No. The opinion says the lawyer's analysis must be objective and based on the lawyer's particular circumstances.

Q: What happens if circumstances change?

A: If continued representation is no longer reasonably competent and diligent, the lawyer must inform the Army and stop; the Army also may revoke consent.

Background and rules framework

Rule 1.7 defines the personal-interest conflict and four requirements for consentable representation. Rule 1.11 makes current government lawyers subject to Rule 1.7. Rule 1.0 informs the written-consent requirements discussed in Rule 1.7's comments.

Citations and references

Nebraska Rules of Professional Conduct:

• Neb. R. Prof. C. §§ 3-501.0, 3-501.7, and 3-501.11(d)

See also

• Connecticut Informal Op. 13-06: Government furlough conflict
• Texas Ethics Op. 649: Government lawyer furlough conflict
• VSB LEO 1875: Furloughed government lawyers

Source

• Landing page: Nebraska lawyer ethics opinions archive
• Original PDF: Nebraska Ethics Advisory Opinion 13-05

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

NEBRASKA ETHICS ADVISORY OPINION FOR LAWYERS

NO. 13-05

WHETHER AN ATTORNEY EMPLOYED BY THE FEDERAL GOVERNMENT TO
DEFEND THE GOVERNMENT IN EMPLOYMENT-RELATED MATTERS MAY
REPRESENT THE FEDERAL GOVERNMENT IN APPEALS FROM EMPLOYEES
REGARDING SCHEDULED FURLOUGHS WHICH ALSO DIRECTLY AFFECT THE
ATTORNEY

STATEMENT OF FACTS

The requesting attorney is licensed to practice law in the State of Nebraska and is

employed by the United States Army as a civilian attorney. As part of the attorney’s job duties,

the attorney represents the Army on various aspects of employment litigation, including

defending the Army in appeals, complaints, and grievances filed by Army civilian employees to

the Merit Systems Protection Board (“MSPB”) with respect to “adverse actions” by the Army

against civilian employees.

The Department of Defense has decided to furlough many civilian employees for 11 days

as a cost-saving measure. This is an “adverse action” subject to appeal by affected civilian

employees to the MSPB and the requesting attorney would routinely represent the Army in such

proceedings as a regular job duty. As a civilian attorney, however, the requesting attorney is also

personally subject to the furlough and, thus, has a personal financial interest in the resolution of

furlough-related proceedings that may conflict with the interests of the Army. The requesting

attorney seeks guidance as to whether the personal financial interest that the requesting attorney

has in the furlough constitutes a conflict of interest in terms of his or her representation of the

Army on furlough-related matters and, if so, what effect such a conflict of interest has on his or

her ability to ethically represent the Army in accordance with the Nebraska Rules of Professional

Conduct.

3018
 The Army is aware of the potential conflict of interest that its civilian attorneys may

experience with respect to furlough-related issues and, accordingly, the Secretary of Defense has

provided a written waiver of any such conflict of interest—subject to a number of specified

limitations—provided that the attorney’s state bar allows for such a waiver.

APPLICABLE RULES OF PROFESSIONAL CONDUCT

The following rules of professional conduct are instructive with respect to the question

presented:

§3-501.7: Conflict of interest; current clients.

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation

involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

(1) the representation of one client will be directly adverse to another client; or

(2) there is a significant risk that the representation of one or more clients will be materially

limited by the lawyer's responsibilities to another client, a former client or a third person or by a

personal interest of the lawyer.

(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a

lawyer may represent a client if:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and

diligent representation to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a claim by one client against another

client represented by the lawyer in the same litigation or other proceeding before a tribunal; and

(4) each affected client gives informed consent, confirmed in writing.

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 ...
Comment 20: Paragraph (b) requires the lawyer to obtain the informed consent of the

client, confirmed in writing. Such a writing may consist of a document executed by the client or

one that the lawyer promptly records and transmits to the client following an oral consent. See

Rule 1.0 (b). See also Rule 1.0 (n) (writing includes electronic transmission). If it is not feasible

to obtain or transmit the writing at the time the client gives informed consent, then the lawyer

must obtain or transmit it within a reasonable time thereafter. See Rule 1.0 (b). The requirement

of a writing does not supplant the need in most cases for the lawyer to talk with the client, to

explain the risks and advantages, if any, of representation burdened with a conflict of interest, as

well as reasonably available alternatives, and to afford the client a reasonable opportunity to

consider the risks and alternatives and to raise questions and concerns. Rather, the writing is

required in order to impress upon clients the seriousness of the decision the client is being asked

to make and to avoid disputes or ambiguities that might later occur in the absence of a writing.

Comment 21: A client who has given consent to a conflict may revoke the consent and,

like any other client, may terminate the lawyer's representation at any time. Whether revoking

consent to the client's own representation precludes the lawyer from continuing to represent other

clients depends on the circumstances, including the nature of the conflict, whether the client

revoked consent because of a material change in circumstances, the reasonable expectations of

the other client and whether material detriment to the other clients or the lawyer would result.

Comment 22: Whether a lawyer may properly request a client to waive conflicts that

might arise in the future is subject to the test of paragraph (b). The effectiveness of such waivers

is generally determined by the extent to which the client reasonably understands the material

risks that the waiver entails. The more comprehensive the explanation of the types of future

3020 representations that might arise and the actual and reasonably foreseeable adverse consequences

of those representations, the greater the likelihood that the client will have the requisite

understanding. Thus, if the client agrees to consent to a particular type of conflict with which the

client is already familiar, then the consent ordinarily will be effective with regard to that type of

conflict. If the consent is general and open-ended, then the consent ordinarily will be ineffective,

because it is not reasonably likely that the client will have understood the material risks involved.

On the other hand, if the client is an experienced user of the legal services involved and is

reasonably informed regarding the risk that a conflict may arise, such consent is more likely to

be effective, particularly if, e.g., the client is independently represented by other counsel in

giving consent and the consent is limited to future conflicts unrelated to the subject of the

representation. In any case, advance consent cannot be effective if the circumstances that

materialize in the future are such as would make the conflict nonconsentable under paragraph

(b).

§3-501.11: Special conflicts of interest for former and current government officials and
employees.
(d) Except as law may otherwise expressly permit, a lawyer currently serving as a public officer

or employee:

(1) is subject to Rule[] 1.7 . . .

DISCUSSION

At the outset, it is important to note that the Committee has not been provided either with

information concerning the specific impact that the furlough will have on the requesting attorney,

or whether the requesting attorney has personally filed a grievance or appeal with respect to

furlough-related matters. It is the understanding of the Committee, however, that the requesting

attorney will essentially be subject to the furlough in the same manner and effect as those 3021 individuals seeking recourse against the Army in proceedings in which the requesting attorney

would be defending the Army. A furlough of 11 working days would in all likelihood result in a

financial loss to the requesting attorney of possibly thousands of dollars. Accordingly, the

Committee believes that there is at least a significant risk that the requesting attorney’s

representation of the Army in furlough-related matters would be materially limited by the

personal financial interest of the lawyer in the outcome of furlough-related matters. Thus, it is

the opinion of the Committee that a concurrent conflict of interest exists under Rule 3-501.7 (a)

(2) and the attorney is prohibited from representing the Army absent the satisfaction of all

requirements set forth in §3-501.7 (b) (1-4).

Because the proposed representation is not explicitly prohibited by law, however, and

there is no indication that the representation would include the assertion of a claim by one client

against another client in the same proceeding, neither §3-501.7 (b) (2) nor §3-501.7 (b) (3) would

serve as an absolute prohibition against the representation. Moreover, the Secretary of

Defense—on behalf of the Army—has provided written, informed consent to the attorney’s

representation irrespective of the potential conflict of interest thus satisfying the requirement of

§3-501.7 (b) (4). Accordingly, it is the position of the committee that the requesting attorney

may proceed with the proposed representation if the attorney reasonably believes that he or she

will be able to provide competent and diligent representation to the client irrespective of the

conflict. See §3-501.7 (b) (1).

Although it is the opinion of the Committee that the requesting attorney may ethically

proceed with the proposed representation if the attorney reasonably believes that he or she would

be able to do so in a competent and diligent manner, it is important to clarify a number of issues

relevant to the analysis. First, the Committee has not been provided with any information

3022 regarding the particular circumstances of the requesting attorney from which to conclude that the

attorney could, in fact, reasonably believe that he or she would be able to perform the proposed

representation in a competent and diligent manner. For instance, the Committee is not aware of

the financial circumstances of the requesting attorney and the impact that the furlough is

expected to have on either the attorney or his or her family. It is certainly plausible to envision a

scenario under which it would not be reasonable for the attorney to conclude that he or she could

competently and diligently represent the Army in light of the attorney’s personal financial

circumstances even though the client has otherwise provided its consent to the representation.

This is an analysis that the attorney must perform prior to initiating his or her representation of

the Army on furlough-related matters and must be evaluated on an objective basis.

Second, the aforementioned analysis as to whether or not the attorney reasonably believes

that the representation could be conducted competently and diligently irrespective of the conflict

of interest is fluid in nature and subject to changing circumstances. Thus, while the

representation may initially be ethical, if circumstances change such that the attorney’s belief in

his or her ability to ethically represent the Army in furlough-related matters no longer remains

reasonable, the attorney must immediately inform the client and cease the representation.

Finally, Comment 21 makes clear that the Army may revoke or limit its consent to the

representation at any time. Accordingly, while the proposed representation may be ethical at its

inception, the consent required under §3-501.7 (b) (4) may be revoked by the Army sometime

thereafter and would serve to terminate the ethical nature of the representation at that point.

CONCLUSION

The requesting attorney’s proposed representation of the Army in furlough-related

matters likely constitutes a conflict of interest under §3-501.7 (a) (2) in light of the significant

3023 risk that the attorney’s personal financial interest in furlough-related matters will conflict with

that of the client. This conflict may be waived, however, upon satisfaction of the conditions set

forth in §3-501.7 (b) (1-4). Because the proposed representation is not prohibited by law; does

not involve the assertion of a claim by one client against another in the same proceeding; and the

client has provided written informed consent; it would be ethical for the attorney to engage in the

representation provided that the attorney reasonably believes—under the particular

circumstances at issue and unique to the attorney—that he or she can do so in a competent and

diligent manner irrespective of the conflict of interest.

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